What To Do When You Need To Modify A Parenting Plan
After your divorce has been finalized, your parenting plan is an enforceable court order. However, circumstances may arise that create a need to revise or modify the original parenting plan. Many different circumstances can lead to modification, such as:
- A parent’s relocation due to employment
- One or both parents’ job schedules change
- Changes in a parent’s or child’s physical or mental health
- Abuse or neglect
A parent seeking to modify a parenting plan must first request mediation. This can be done on your own or through your attorney. Normally, the parties or their counsel will pick a mutually agreeable mediator, date and time and will share the cost of the mediator’s fee.
If a party refuses to respond to the request or attend mediation or the mediation fails to result in a settlement, then a petition to modify can be filed with the court asking for relief. Once the other parent is served, he or she has 30 days to respond by filing an answer. If mediation has not already occurred, the trial court will usually require it before setting a hearing date.
When a petition to change or modify custody is filed, the parent asking for the modification has the burden of showing the trial court that:
A “material change in circumstances” has occurred. If a material change is shown, that parent must then prove that a change of custody or change in the residential parenting schedule is in the child’s best interest. The following factors indicate that a material change in circumstances has occurred: The change occurred after the parenting plan order was entered by the court; at the time of the order’s entry, this change was not “reasonably anticipated;” and the change “affects the child’s well-being in a meaningful way.”
A material change of circumstance for purposes of modification of a residential parenting schedule (as opposed to a change of the primary residential parent) may include significant changes in the child’s needs as time progresses, which may include age-related variations; significant differences in a parent’s living or working situation that significantly impact parenting; failure to follow the provisions of the parenting plan; or other circumstances making a change in the residential parenting time in the child’s best interests. Tenn. Code Ann. § 36-6-101(a)(2)(c).
When Substantial Change Occurs
If such a change is shown, the court must turn to a best interests determination that includes a review of multiple factors, located at T.C.A. §36-6-101(a)(1)-(10). These factors include the emotional ties between child and parent; the parents’ ability to provide for care and educational needs; continuity; stability of the family unit; parents’ mental and physical health; the home, school and community record of the child; the reasonable preference of a child who is at least 12 years old; evidence of physical or emotional abuse; character and behavior of third parties who interact with the child; and each parent’s parenting history.
C. A. § 36–6–108
36–6–108. Parent relocation
(a) After custody or co-parenting has been established by the entry of a permanent parenting plan or final order, if a parent who is spending intervals of time with a child desires to relocate outside the state or more than fifty (50) miles from the other parent within the state, the relocating parent shall send a notice to the other parent at the other parent’s last known address by registered or certified mail. Unless excused by the court for exigent circumstances, the notice shall be mailed not later than sixty (60) days prior to the move. The notice shall contain the following:
(1) Statement of intent to move;
(2) Location of proposed new residence;
(3) Reasons for proposed relocation; and
(4) Statement that absent agreement between the parents or an objection by the non-relocating parent within thirty (30) days of the date notice is sent by registered or certified mail in accordance with subsection (a), the relocating parent will be permitted to do so by law.
(b) Absent agreement by the parents on a new visitation schedule within thirty (30) days of the notice or upon a timely objection in response to the notice, the relocating parent shall file a petition seeking approval of the relocation. The non-relocating parent has thirty (30) days to file a response in opposition to the petition. In the event no response in opposition is filed within thirty (30) days, the parent proposing to relocate with the child shall be permitted to do so.
(c)(1) If a petition in opposition to relocation is filed, the court shall determine whether relocation is in the best interest of the minor child.
(2) In determining whether relocation is in the best interest of the minor child, the court shall consider the following factors:
(A) The nature, quality, extent of involvement, and duration of the child’s relationship with the parent proposing to relocate and with the non-relocating parent, siblings, and other significant persons in the child’s life;
(B) The age, developmental stage, needs of the child, and the likely impact the relocation will have on the child’s physical, educational, and emotional development, taking into consideration any special needs of the child;
(C) The feasibility of preserving the relationship between the non-relocating parent and the child through suitable visitation arrangements, considering the logistics and financial circumstances of the parties;
(D) The child’s preference, if the child is twelve (12) years of age or older. The court may hear the preference of a younger child upon request. The preference of older children should normally be given greater weight than those of younger children;
(E) Whether there is an established pattern of conduct of the relocating parent, either to promote or thwart the relationship of the child and the non-relocating parent;
(F) Whether the relocation of the child will enhance the general quality of life for both the relocating parent and the child, including, but not limited to, financial or emotional benefit or educational opportunity;
(G) The reasons of each parent for seeking or opposing the relocation; and
(H) Any other factor affecting the best interest of the child, including those enumerated in § 36-6-106(a).
(3) If, upon consideration of factors in subdivision (c)(2), the court finds that relocation is in the best interest of the minor child, the court shall modify the permanent parenting plan as needed to account for the distance between the non-relocating parent and the relocating parent.
(4) If the court finds that relocation is not in the best interest of the minor child, the court shall deny the petition for approval and, utilizing the factors provided in § 36-6-106(a), enter a modified permanent parenting plan that shall become effective only if the parent proposing to relocate elects to do so despite the court’s decision denying the parent’s petition for approval.
(d) In fashioning a modified parenting plan under subdivisions (c)(3) and (4), the court shall consider and utilize available alternative arrangements to foster and continue the child’s relationship with and access to the other parent. The court shall also assess the costs of transporting the child for visitation, and determine whether a deviation from the child support guidelines should be considered in light of all factors, including, but not limited to, additional costs incurred for transporting the child for visitation.
(e) Nothing in this section shall prohibit either parent from petitioning the court at any time to address issues other than a change of custody related to the move, including, but not limited to, visitation.
(f) Either parent in a parental relocation matter may recover reasonable attorney fees and other litigation expenses from the other parent in the discretion of the court.
Parenting Plans In Juvenile Court
If your parenting plan was completed in juvenile court instead of divorce court, then the same standard of material change of circumstances applies. Most juvenile courts will also require or favor mediation prior to a hearing being held.
Contact Our Firm For Help
If you believe your change in circumstances is enough to warrant the change of a co-parenting plan or a support order, talk to the lawyers at our firm. We have considerable experience handling a variety of family law matters, including modification requests. We can help you.
Schedule a free initial consultation online or call 865-566-0125 to set up an appointment at our Knoxville, Tennessee office. We accept credit cards.